Coffee City v. Thompson

• Decision Date: 25 March 1976
• Docket Number: No. 882,882
• Parties: COFFEE CITY et al., Appellants, v. B. J. THOMPSON, Appellee.
• Court: Texas Court of Appeals

Page 758

535 S.W.2d 758

COFFEE CITY et al., Appellants, v. B. J. THOMPSON, Appellee.

No. 882.

Court of Civil Appeals of Texas,

Tyler.

March 25, 1976.

Rehearing Denied April 22, 1976.

F. Wilbert Lasater, Potter, Lasater, Guinn, Minton & Knight, Tyler, Jack Y. Hardee, Fields, Fields & Hardee, Athens, for appellants.

A. D. Henderson, Palestine, for appellee.

McKAY, Justice.

Appellee, B. J. Thompson, brought suit against the Town of Coffee City, Texas; Roland Wayne Phillips, individually and as mayor of Coffee City; Mary Phillips, individually and as city secretary of Coffee City; Paul Phillips and Wilbert Davis. Appellee sought to have the zoning ordinance of the Town of Coffee City declared null and void, and prayed for a writ of mandamus or mandatory injunction for the issuance of a building permit for the construction of a building in which to operate a package store for the sale of alcoholic beverages. The property of appellee was zoned 'residential' by the zoning ordinance of Coffee City. Trial was before the court without a jury.

The trial court rendered judgment that the zoning ordinance was invalid and null and void, and ordered the Town of Coffee City, Mary Phillips, city secretary, and all other officials to grant appellee's building permit to construct a building for the operation of a package liquor store. Appellants bring this appeal from the portion of the judgment holding the zoning ordinance, being Ordinance No. 1, null and void, and of no further force and effect. We affirm.

The trial court made and filed Findings of Fact and Conclusions of Law. The Town of Coffee City was incorporated under the laws of Texas on December 18, 1969. At the first election Wayne Phillips was elected mayor, Paul Phillips was elected councilman, and Mary Phillips was appointed city secretary, all of whom are parties individually and in their official capacities. On January 19, 1970, Ordinance No. 1 ¹ was adopted by the Town Council. Under the local option provisions of the Texas Liquor Control Act, the Town of Coffee City legalized the sale of all alcoholic beverages, for off-premises consumption only, on February 22, 1970.

Under the provisions of Ordinance No. 1 appellee's property was classified as 'residential'. On August 2, 1973, appellee filed with the city secretary and Town Council an application and request that his property be changed from 'residential' classification to 'commercial' classification, and such request was denied on September 12, 1973, by the Council. ²

On October 4, 1973, appellee filed an application for a building permit with the city secretary to construct a building for use as a package store and the sale of other alcoholic beverages. The appropriate filing fee was tendered with such application. On October 25, 1973, the application for the building permit was refused on the ground that the property in question was zoned 'residential' under Ordinance No. 1.

At the time of the adoption of Ordinance No. 1, January 19, 1970, the town did not have a Zoning Commission or a Planning and Zoning Commission, nor did it have such a commission at the time of trial.

Cora Bradley had an undivided interest in appellee's property at the time of the adoption of Ordinance No. 1 and had actual notice of the proposed ordinance and requested that the property be zoned 'residential'.

The appellants, Roland Wayne Phillips, mayor, and his brother, Paul Phillips, a member of the Town Council, jointly own the package store, Kilo Drive-In, in Coffee City, and it is the only package store in the Town of Coffee City located on Highway No. 155. At all times material to this case Coffee City had a population not less than 200 nor more than 1,000 inhabitants.

Prior to the meeting of the Council on January 19, 1970, written notices of such meeting were posted in three public places in the Town of Coffee City at least three days prior to such meeting. No personal notice was given to any property owner prior to the council meeting of January 19, 1970, regarding the proposed adoption of Ordinance No. 1. Subsequent to the passage of Ordinance No. 1, the entire ordinance was published in the Athens Review, Athens, Texas, a weekly newspaper of general circulation in Henderson County, Texas.

The trial court found in conclusions of law that Ordinance No. 1 is invalid (1) because it is vague and indefinite in that it does not contain a prohibition of commercial use such as the use sought by appellee in a residential area nor does it define or furnish guidelines for commercial or residential use; (2) because the Town of Coffee City failed to provide for a Zoning Commission in order to exercise zoning powers as required by Art. 1011f; ³ (3) because of the failure of the Town of Coffee City to follow the procedural requirements of Art. 1011d; (4) because of the failure of the Town of Coffee City to give personal notice to the appellee's predecessors in title and for failure to comply with the notice requirements of Art. 1011d. The Court also found that Art. 974d--18, does not validate Ordinance No. 1 in that the validating act has no application to an invalid ordinance such as the instant one.

Appellant brings three points of error contending that the trial court erred in declaring Ordinance No. 1 invalid (1) for vagueness, (2) for failure of the Town of Coffee City to provide for a Zoning Commission, and (3) for failure of the Town of Coffee City to give personal notice to appellee's predecessors in title and for failure to comply with the procedural requirements of Art. 1011d.

Appellants' first point complains that the trial court erred in finding Ordinance No. 1 invalid because it is vague and indefinite. Appellants argue that the ordinance is not uncertain simply because it does not define 'residential' and 'commercial', and that the word 'residential' has a clear and well understood meaning--that is, the use of property for living purposes as distinguished from use for business or commercial purposes. Appellants further say that an ordinance may be adequate as a rule of civil conduct even though it may be too indefinite and uncertain to be enforced by criminal prosecution. Appellants cite Vaccaro v. Rougeou, 397 S.W.2d 501 (Tex.Civ.App.--Houston 1966, writ ref'd n.r.e.), a restrictive covenant case, as authority for the meaning of the words 'residential' and 'commercial'.

Appellants make the further argument that appellee knew his property was zoned residential before he acquired it and before he applied for a building permit, and that he does not have standing to assert the rights of others.

On the other hand, appellee contends that the ordinance is vague, ambiguous, uncertain and incomplete because (1) it fails to prohibit commercial uses of property classified or zoned residential; (2) it fails to provide any guideline for the city secretary in either issuing or denying a building permit; and (3) it fails to define uses permitted in the areas zoned residential and the areas zoned commercial. Appellee argues that since the ordinance fails to expressly restrict the use of properties zoned residential to residential use, that is, it fails to prohibit a commercial use of property zoned residential, it would have to be implied that a commercial use is not permitted in a residential area, and be implied that a residential use is not permitted in area zoned commercial. Appellee points out that the ordinance has no provision making it unlawful or prohibiting the use of property for commercial purposes in a residential area, nor does Ordinance 1 contain a directive to the city secretary requiring her to deny a building permit for construction of a commercial building simply because it is located in the residential zone.

In Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W.2d 446 (Tex.Comm'n.App.1942, opinion adopted), it is said, 'A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'

Sanders v. State Department of Public Welfare, 472 S.W.2d 179 (Tex.Civ.App.--Corpus Christi 1971, writ dism'd), contains this language:

'It is a general principle of law that a statute or regulation must be definite to be valid. Due process of law in legislation requires definiteness or certainty. If a regulation is incomplete, vague, indefinite and uncertain, and it forbids the doing of an act which is so vague, that men of common intelligence must necessarily guess at its meaning and that such men differ as to application, it violates the first essential of due process of law.'

See 56 Am.Jur.2d Municipal Corporations, Sec. 367, p. 394.

Applying the above principles to the ordinance here in question, we are of the opinion such ordinance is vague, uncertain, indefinite and incomplete and, therefore, invalid. It does not prohibit the building of a residence upon a commercially zoned area, nor does it prohibit the erection of a commercial building upon an area zoned residential. It simply describes a certain area as commercial, and then it declares all other property is zoned residential. It does not describe what type or kind of residential structures may be built. Some buildings, such as an apartment building, may have both residential and commercial use.

The ordinance does not provide any criteria or guidelines for the city secretary to follow in granting or refusing building permits; and, therefore, it must be implied that the city secretary has discretionary authority without restriction in issuing or denying such permits. An ordinance leaving the question of issuing or denying building permits to the arbitrary discretion or determination of the city secretary without any rule or standard to follow is invalid. Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513, 517, 19 A.L.R. 1387 (1921); Crossman v. City of Galveston, 112 Tex. 303, 247...